Chủ Nhật, 18 tháng 3, 2018

Even if a trademark is
expunged, it doesn’t mean it’s no longer in use. If the trademark in question
is still used by the owner, then he/she may still have common law rights. That
means that when you file your trademark application, once it’s published for
opposition purposes, the owner of the expunged registration may oppose
registration of your mark on the ground of prior use. And he may win!

Thứ Năm, 15 tháng 3, 2018

On
March 9th, 2018, Minister of Industry and Trade, Vietnam Tran Tuan Anh and 10
Ministers of the Member countries signed the Comprehensive and Progressive
Agreement for Trans-Pacific partnership (CPTPP) in the capital Santiago, Chile.

CPTPP, a new generation free-trade agreement, is
established to replace TPP after the exception of U.S – the world’s largest
economy. To the contrary of this situation, CPTPP still holds the high
standards. This agreement will be available in 60 days after being signed by 6
of 11 member countries, including Australia, Brunei, Canada, Chile, Japan,
Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam.

Speaking after the signing ceremony, The
Minister of Foreign Affairs, Chile Heraldo Munoz said: “CPTPP is an unique
signal to protest the protectionism and advocating a diversified world,
multilateral trade”. It is expected that CPTPP is a crucial document to set up
a sample for the commercial transactions in the future.CPTPP founded in the context of President Donal
Trump’s threats to increase taxes on steel and aluminum, which impacts many
countries and could create a commercial global war.

CPTPP reduces the tariff between 11 member
countries which accounted for 13% of the global economy with GDP hit 10,000
billion USD, if it involved U.S, the rate was 40%.President Chile Michelle Bachelet addressed: “We
are here today can be proud of ending this process and send a meaningful
message to the community that opening the market, economic integration and
international cooperation are the best tool for creating opportunity and
prosperity for the economy”.

U.S moved away from CPTPP and tireless efforts
are rewarded:At this time, CPTPP is the world’s largest
commercial agreement. The Washington’s retreat from TPP did not give an end
this agreement, with a number of efforts from members, especially Japan, has
helped revive the high standard agreements in order to create new standards for
global trade.

With the APEC 2017 host country role, Vietnam
and Japan made efforts to put everything back in orbit. Following this, the
content of CPTPP eliminated some requirements requested by U.S from the round
of TPP negotiation, including the rules strengthen intellectual
property protection to
pharmaceutical products. Many countries and activists believe that this
regulation will increase the price of drugs. A final draft of the CPTPP was
announced in February 21st in New Zealand.

CPTPP retains the contents of the TPP but for
some member countries postponed their obligations. It is expected that CPTPP is
comprehensive, balances the interests and has the benefits of the countries too
after difficult but constructive negotiations.ANT Lawyers strives to follow CPTPP and other
inter countries agreement to exploit best benefits for the clients.

Trademark registrations
are widely used to protect brand or slogans or coined words that are unique to
a person or entity. Trademark registration can thus be obtained by individuals
or businesses or not-for-profit organisations. However, each of the different
class of persons or entity have different requirements while filing a trademark
application. In this article, we look at some of the requirements for filing trademark
application based on the
applicant type.

An Individual (Person)

An individual not doing
any business is also eligible to file a trademark application and obtain
trademark registration for a word or symbol that is proposed to be used by
him/her in the future. When filing trademark application as an individual, the
full name of the applicant is required.

In case two persons come
together and decide to file a trademark application, then the names of both the
person must be mentioned on the trademark application.

Proprietorship Firm

In case of a
proprietorship firm filing a trademark application, the full name of the
Proprietor must be mentioned in the application. A business name or
proprietorship name is not acceptable as the name of an individual. This is
because a business name or proprietorship name is more in the nature of an
alias for the actual person and proprietorship firms are not a separate legal
entity. However, if a proprietorship name or business name is included on the
application in addition to the name of an individual applicant, those details
will be captured separately.

Partnership Firm

In case of a partnership
firm filing for trademark application, the names of all the partners are
essentially required to be mentioned in an application filed by a partnership
firm. Partnership firms are not considered as a separate legal entity and
hence, the names of all Partners must be mentioned in the trademark
application. If the partnership firm includes a minor in the partnership, the
name of guardian representing the minor should also be mentioned.

Limited Liability
Partnership

In case of a Limited
Liability Partnership making a trademark application, the application for
registration must be made in the LLP name. A LLP being an incorporated body has
its own identity. Thus the Partner by themselves cannot be the applicant,
wherein the trademark must belong to a LLP.

Vietnam Company

In case of a private
limited company or one person comapny or limited company making a trademark
application, the application for registration must be made in the company name.
A company being an incorporated body has its own identity other than its
directors, therefore a director of the company cannot be the applicant,
although the application can be signed and submitted by the Director or any
Officer, authorized by the company.

Foreign Company

In case of a foreign
incorporated entity making a trademark application in Vietnam, the application
for registration must be made in its own corporate name, as registered under
the foreign country. The nature of registration, country of incorporation and
the law under which the company is registered, are to be mentioned. If the
foreign company has no principal place of business in India, the applicant’s
address for service in India should be mentioned in the application.

Trust or Society

If a trademark
application is made on behalf of a Trust or Society, the name of the Managing
Trustee or Chairman or Secretary representing the Trust or Society should be
mentioned.

A registered
trademark is one in which the proprietor of the marks files an application
before the Trademarks Registery in the relevant class and is granted
registration by the Trademarks Registry. To get registration, the applicant
needs to show to the Registry that it's distinguishable from others and creates
a unique identity for the product. Once Registered, a trademark gets protection
under the Trademarks Act and the proprietor can sue any party using his
trademark for infringement and can also claim damages. When the trademark is
applied, the proprietor can add (TM) written in a small font on the upper right
hand corner of the mark. Once Registered, (R) can be added in place of TM.

An unregistered
trademark is one which is not registered by the Trademarks Registry. It may be
a case of pending for registration or it may be a case where the proprietor has
not filed any application for registration of
trademark. There are cases
where some proprietors use trademarks which are not capable of registration and
they decide not to apply. There are also cases which which the proprietor
decides to use a trademark which is deceptively similar to a registered
trademark and the proprietor knows that it is almost impossible to get
registration. In some cases, proprietor doesn't apply for registration due to
ignorance of IP laws.

An unregistered
trademark doesn't have much protection under trademarks act. The proprietor can
only sue a third party for passing off and not infringement. The proprietor can
also not stop any other party from using the same mark. In short the proprietor
doesn't get any statutory protection but gets only some common law rights.

One can't use (R) with
an unregistered trademark.

ANT Lawyers is
supported by a team of experienced patent, trademark, design
attorneys with qualification and skills handling full range of legal
services relating to intellectual property in Vietnam. We have
specialized in the preparation and registration of patents, trademarks and
designs for our clients.

We are representing
and advising clients being multinationals, inventors, global partner law firms
serving their clients in IP works in Vietnam.

Thứ Tư, 7 tháng 3, 2018

The traditional economic
argument for patenting is that since innovation is a highly risky endeavor and
the benefits to society are often greater than the benefits to the innovator,
if filled with rational actors, society would otherwise underinvest in innovation.
In addition, if the innovator keeps her invention secret then it is difficult
for others to benefit from this information and make further innovations. So
the solution offered by patent policy is to give the innovator monopoly profits
for a period of time in exchange for putting the information behind the patent
into the pubic domain. There are other methods for encouraging
innovation, including R&D tax credits, subsidies, government procurement,
or prizes for innovation.

Arora and coauthors
(2008) find that patents stimulate R&D across a wide range of manufacturing
industries. Moser (2005) finds that countries without patent protection tend to concentrate their innovation in
industries where trade secrets are most effective, so patenting spreads out the
distribution of innovative activity. However, she also concludes that for
developing countries creating a patent system may not be an optimal solution
initially.

Generally speaking, IP
law favors creators. In most developed nations, it is possible for private
litigants to prevail in court when substantive claims are made. There is a long
history of cases decided for the "little guy".

Corporate entities may
try to stall such proceedings or to overwhelm claimants, but well documented IP
rights are often upheld or settled for the benefit of the creator.

Without such laws, we
would be awash in a sea of piracy. We would be left only with trade secrets as
our sole protection which would make production costs skyrocket, or keep
artists and trade entities relatively unknown and mired in litigation.

This is not to say that
all use of IP law is fair to creators and consumers.
Knowledgable artists will be among the first to point to "public
domain" as a key and critical part of IP law which is being usurped by
corporations in the USA and possibly globally. Public domain is built on a
premise that at some point, creations become a part of the cultural fabric.

The Micky Mouse
character known as "Steamboat Willie" is often cited as central to
this debate. As the film short was about to enter public domain American
copyright protections were extended to protect this Walt Disney property. However
a viable argument can and is often made that Disney can protect its interests
through Trademark law, while allowing the world access to the original production
as a part of global culture through public domain.

Trademark is a sign that
help distinguish the goods or services of one enterprise from those of others.
Together with industrial design and patent, trademark of goods and services
plays an extremely important role for the growth of the enterprise. Trademark
establishes a link between enterprise and customer. A strong trademark will attract customers to
use goods or services.

Trademarks are for
words, symbols, devices or names that are used to distinguish the goods of one
manufacturer or seller from that of another. Any distinctive name, symbol, or
word is designated as trademarked with the symbol "TM". If a company
has trademarks that are not officially registered, it can use the letters
"TM" to show that it claims ownership of the mark. A company must
continue using the "TM" symbol until the trademark office actually registers a mark. A company
cannot use the R circle symbol while a trademark registration application
is still pending.

R(Registered Trademark)

A company can only use
the circled R symbol in conjunction with its products and brands if it has
officially registered a trademark with the trademark office. A company can
continue simply using the "TM" symbol in conjunction with its brands
instead of officially registering a trademark and using the R circle symbol,
but trademark registration carries certain legal benefits. Trademark registrationincludes public notice of the owner's claim to the mark, a legal
presumption that the party that registered the mark owns it and has the
exclusive right to use the mark.

Thứ Tư, 28 tháng 2, 2018

At an informal meeting
of representatives from 11 countries (without US) taking place on the
Asia-Pacific Economic Cooperation (APEC) dated on November 10th, 2017, the
parties agreed to change from Trans-Pacific Partnership Agreement (TPP) to the
Comprehensive and Progressive Partnership for Trans-Pacific Partnership
(CPTPP).

Accordingly, the CPTPP
contains 8,000 pages of documents, but only 20 articles of the TPP agreement,
including 10 articles related to intellectual property (IP) and 4 points are
reserved for the parties to negotiate in next time. Each member will list its
delimited list of restrictions of their country.

According to the
Vietnam Minister of Industry and Trade, CPTPP still guarantees a quality
agreement like TPP-12, while ensuring new equilibria for member countries. The
content of the CPTPP is not only about trade, investment, but also on
intellectual property (albeit temporarily postponed) and other broad areas.

With CPTPP, Vietnam
may not be the most beneficiary country like the proposed TPP, but it is still
very important, because it brings together many of the criteria associated with
reform, particularly institutional reform, improving the investment climate,
business.

Vietnam law on
Intellectual Properties will need to be amended because the legal system of
Vietnam’s IP is not consistent with the legal system of developed
countries. The Law on Intellectual
Property of Vietnam, after many
proposals, has not yet been approved by the National Assembly. Meanwhile, the
amended Law on Technology Transfer, though approved in June 2017, still lacks
specific guidelines on technology transfer.

Intellectual property
rights in the TPP not
only contain general provisions and requirements relating to areas of
cooperation, patents, test data, designs, trademarks, geographical indications
or copyright but also focuses on the legal enforcement of this right by
nations.

The CPTPP is based on
agreed commitments at the TPP, which are particularly important in paving the
way for Vietnamese goods to penetrate into the members’ markets.